SUBCUSTODIAN AGREEMENT
----------------------
30th April, 1992
Standard Bank of South Africa Limited
Standard Bank Xxxxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx 0000
Xxxxx Xxxxxx
Dear Sirs,
This will confirm to you that The Chase Manhattan Bank, N.A. ("Chase") has been
appointed to act as Trustee, Custodian or Subcustodian of securities and monies
on behalf of certain of its customers including, without limitation, investment
companies subject to the Investment Company Act of 1940, as amended and
qualified employee benefit plans subject to the Employee Retirement Income
Security Act of 1974, as amended.
Chase has been authorized to use the services of other banks, financial
institutions and securities depositories located in countries or jurisdictions
in which the principal trading markets for any shares, bonds, debentures or any
other securities (hereinafter collectively called "Securities") of its customers
are located or in which any Securities of its customers are to be presented for
payment or acquired. In particular, Chase has been authorized to use such
services for the purpose of holding Securities and cash (as herein after
defined) of its customers. Chase wishes to use the services of your ("Bank") as
Chase's agent within South Africa for the foregoing purposes and hereby
establishes with Bank a Special Custody Account which Bank understands and
agrees shall be used exclusively for Securities and other assets of Chase's
customers ("Account") and not for Chase's own interest.
The services Bank shall provide to Chase and the manner in which such services
shall be performed are as set forth in this letter (the "Agreement") and in the
separate agent service contract ("Contract") between Bank and Chase, either of
which may be amended in writing from time to time by Bank and Chase. To the
extent not inconsistent with the Contract, the terms and conditions set forth
herein shall govern the Contract. To the extent inconsistent with this Agreement
and/or the Contract, Bank's rules and conditions regarding accounts generally or
custody accounts specifically shall not apply.
1. The Account shall be used exclusively to hold, acquire, transfer or
otherwise care for, on behalf of Chase as Trustee, Custodian or
Subcustodian as aforesaid and the customers of Chase and not for Chase's
own interest, Securities and such cash or cash equivalents are as
transferred to Bank or as are received in payment for any transfer of, or
as payment on, or interest on or dividend from, any such Securities
(hereinafter such cash or cash equivalents shall be collectively called
"Cash"), and beneficial ownership of the Securities in the Account shall be
freely transferable without payment of money or value other than for safe
custody and administration. All transactions involving the Securities and
Cash in the Account shall be executed solely in accordance with Chase's
Instructions, as that term is defined in Section 10, except that until Bank
receives Instructions from Chase to the contrary, Bank shall:
a) present for payment all Securities held in the Account which are
called, redeemed or retired or otherwise become payable and all
coupons and other income items which call for payment upon
presentation and hold the Cash received therefrom in the Account
pursuant to this Agreement;
b) in respect of Securities held in the Account, execute in the name of
Chase such ownership and other certificates as may be required to
obtain payments in respect thereof;
c) exchange interim receipts or temporary Securities held in the Account
for definitive Securities; and
d) where any Securities held in any securities depository or clearing
agency, as hereinafter authorized, are called for a partial redemption
by the issuer of such Securities, allot the called portion to the
respective holders in any manner deemed to be fair and equitable in
the Bank's sole discretion.
Whenever pursuant to this Agreement or for any purpose relating hereto
anything whatsoever may or is required to be done or given by Chase, it
shall be done or given, as the case may be, by and for Chase by such
officer or officers of Chase or other person or persons as the governing
body of Chase shall specify from time to time ("Authorized Persons"). Any
such specification by the governing body shall be by resolution, or which a
copy certified by the President or a Vice President and the seal attested
to by the Secretary or any Assistant Secretary of Chase shall be furnished
to Bank. Bank shall be conclusively entitled to rely upon the
identification of such persons as the holders of those offices and/or
titles so specified in any such resolution which shall be in force from
time to time. Bank shall act upon, and be fully protected in acting in
accordance with, Instructions signed or given by an Authorized Person
specified in any such resolution received by Bank and in force at the time
of the receipt by Bank of such Instructions, and shall not be charged with
any responsibility respecting the application of monies paid out in
accordance therewith.
Bank shall not be liable for any act or omission in respect of any
Instructions so given, except in the case of (i) an act or omission
constituting a breach of this Agreement by Bank and/ or (ii) willful
default, negligence fraud, bad faith, willful misconduct, or reckless
disregard of duties on the part of Bank. In executing all Instructions,
Bank shall take relevant action in accordance with accepted industry
practice. Bank shall advise Chase to the extent that such practices are
contrary to, or inconsistent with, any such Instructions.
2. The Account shall not be subject to any right, charge, security interest,
lien or claim of any kind (hereinafter collectively called "Claims") in
favour of Bank or any other institution with whom assets in the account may
be maintained as provided in this Agreement or any creditor of Bank or of
such other institution, including a receiver, trustee in bankruptcy, a
curator or a liquidator, except to the extent of Bank's or such other
institution's right to compensation or reimbursement with regard to the
Account's administration in accordance with the terms of this Agreement.
Bank shall provide Chase with prompt notice of any attempt by any party to
assert any Claim against the Account and shall take all lawful actions to
protect the Account from such Claim until Chase has had a reasonable
opportunity to respond to such notice.
3. The ownership of the assets of the Account, whether Securities, cash or
both, and whether any such assets are held by Bank or in a securities
depository or clearing agency, as hereinafter authorized, shall be clearly
recorded on Bank's books as belonging to Chase on behalf of Chase's
customers and not for Chase's own interest and, to the extent Securities
are physically held in the Account, such Securities shall also by
physically segregated from the general assets of Bank, the assets of Chase
in its individual capacity and (save for registered Securities registered
in accordance with sub-paragraphs (b) and (c) below) the assets of Bank's
other customers.
In order to facilitate the settlement of transactions, Bank may, with the
approval of Chase, which shall not be unreasonably withheld, maintain all
or any part of the Securities in the Account with a securities depository
or clearing agency which is incorporated or organized under the laws of a
country other than the United States of America and which is supervised or
regulated by a government agency or regulatory authority in the foreign
jurisdiction having authority over such securities depositories or clearing
agencies, and which operates (i) the central system for handling of
securities or equivalent book entries in South Africa, or (ii) a
transactional system for the central handling of securities or equivalent
book entries, provided, however, that while so maintained such Securities
shall be subject only to the directions of Bank and the Bank's duties,
obligations and responsibilities with regard to such Securities shall be
the same as if such Securities were held by Bank.
Securities which are eligible for deposit in a securities depository or
clearing agency may be maintained with any such securities depository or
clearing agency in an account for Bank's customers. Securities which are
not deposited in a securities depository or clearing agency shall be held
in the following forms:
a) Securities issues only in bearer form shall be held in bearer form;
b) Securities issued only in registered form shall be registered in the
name of Bank as agent, in the name of Bank on behalf of its customers,
in the name of Bank's nominee, or otherwise, as Chase may instruct.
c) If received by Bank in registered form, Securities issued in both
bearer and registered form (which Securities are freely
interchangeable without penalty), shall be registered the name of
Bank's nominee, or otherwise, as Chase may instruct. If such
Securities are received by Bank in bearer form, they shall be so held,
unless alternate Instructions are furnished by Chase.
4. Subject to the provisions of Section 8 hereof:
a) Bank shall be responsible for complying with all provisions of the
laws of South Africa, and any other laws, applicable to Bank in
connection with its duties hereunder, including, but not limited to,
the payment of all transfer or similar taxes and compliance with any
currency restrictions and securities laws;
b) All collections of funds or other property paid or distributed in
respect of Securities held in the Account shall be made at the risk of
the Account; and
c) Bank shall have no liability for any loss occasioned by delay in the
actual receipt of notice by its Custody Division of any payment,
redemption or other transaction regarding securities held in the
Account in respect of which Bank has agreed to take action as provided
in Section 1 hereof, except to the extent that any such delay arises
from (i) an act or omission constituting a breach of this Agreement by
Bank and/or (ii) wilful default, negligence, fraud, bad faith, wilful
misconduct or reckless disregard of duties on the part of Bank.
5. Subject to applicable law, Bank shall permit independent public accountants
or independent chartered accounts S.A. for Chase and customers of Chase
reasonable access to Bank's books and records as they pertain to the
Account in connection with such accountants' examination of the books and
records of Account. Bank shall use its best efforts in obtaining such
reasonable access with respect to the books and records of any securities
depository or clearing agency used by Bank as authorized hereunder, as such
books and records pertain to the Account in connection with such
accountants' examination of the books and records of Account. Further, as
Chase may request from time to time, Bank shall (i) furnish Chase with
auditor's reports on Bank's system of internal accounting controls as such
reports relate to Bank's services and duties hereunder and (ii) use its
best efforts to furnish Chase with similar reports with respect to any
securities depository or clearing agency holding Securities in the Account.
6. Bank shall either periodically or upon Chase's request supply Chase with
such statements regarding the Account as Chase may reasonably specify,
including the name or identification of, and the location or address and
principal place of business of, any person having physical possession of
the Securities in the Account, and the name and address of the governmental
agency or other regulatory authority that supervises or regulates Bank
and/or any such person. In addition, Bank shall furnish Chase periodically
with advices and/or notifications of any transfers of such Securities.
Bank shall follow interest, dividend and coupon payments, redemptions,
exchanges and similar matters with respect to Securities, and matters
concerning Securities that require discretionary action, including, without
limitation, subscription rights, bonus issues, stock repurchase plans and
rights offerings, or legal notices or other material issues, stock
repurchase plans and rights offerings, or legal notices or other material
intended to be transmitted to securities holders ("Corporate Actions").
Bank shall give Chase timely notice in English of such Corporate Actions to
the extent that Bank has actual knowledge of such Corporate Actions. Upon
receipt, and if Chase has so requested, Bank promptly shall send to Chase
all notices of annual and extraordinary meetings of shareholders and other
proxy solicitations together with resolutions or other matters to be voted
on by shareholders. Where such notices and related materials are not
provided to Bank in English, Bank shall provide English translations. Bank
shall also provide Chase with copies of any backup information which is
received, including the reports or recommendations of management, annual
reports and other material relevant to proxy voting. This latter
information need not be translated, but the material must be legible and in
a form suitable for copying. Bank shall vote proxies as directed pursuant
to timely Instructions. To the extent local practices or particular issuers
may impose special requirements in order to vote proxies, Bank shall
cooperate with Chase to assure such requirements are met.
7. Bank agrees that, in the event of any loss of Securities or case in the
Account, Bank shall use its best efforts to ascertain the circumstances
relating to such loss and promptly report the same to Chase.
8. Bank shall hold Chase harmless from, and shall indemnify Chase for, any
loss, liability, claim or expense incurred by Chase (including, but not
limited to, Chase's legal fees and expenses and any other legal fees and
expenses for which Chase may be liable, and any loss, liability or expense
in connection with a claim settled by agreement between Chase and a
customer, which agreement is accepted by Bank) to the extent that such
loss, liability, claim or expense arises from (i) an act or omission
constituting a breach of this Agreement by Bank and/or (ii) willful
default, negligence, fraud, bad faith, willful misconduct or reckless
disregard of duties on the part of Bank. Chase shall hold Bank harmless
from, and shall indemnify Bank for, any loss, liability, claim or expense
incurred by Bank as the result of any action taken or omitted to be taken
by Bank with respect to the account, except to the extent that such loss,
liability, claim or expense arises from (i) an act or omission constituting
a breach of this Agreement by Bank and/or (ii) willful default, negligence,
fraud, bad faith, willful misconduct or reckless disregard of duties on the
part of Bank. Any provision herein to the contrary notwithstanding, Bank
shall be liable for, and shall indemnify Chase for, any loss of Securities
and/or Cash due to mysterious or unexplained disappearance or loss.
If Bank is the South Africa branch of a foreign bank, the obligations and
responsibilities of Bank hereunder are the obligations and responsibilities
of Bank as a whole (including, but not limited to, Bank's head office).
9. Bank acknowledges that under US regulatory requirements Bank must be a
regulated entity and must have a certain minimum shareholders' equity in
order to be used by Chase to provide the services contemplated in this
Agreement. Bank represents and warrants to Chase, which shall be continuing
representations and warranties, that it (i) is a banking institution
incorporated or organized under the laws of the Republic of South Africa,
(ii) is regulated as a banking or deposit taking institution by the
Registrar of Deposit-Taking Institutions, which is the agency of the
Government of the Republic of South Africa responsible for the regulation
of banks and (iii) as of the close of its fiscal year most recently
completed and on and after the date hereof or such later date as shall be
specified in Instructions, has shareholders' equity in excess of two
hundred thirty million US Dollars (US$230,000,000), or such lesser amount
as shall be specified in any order of the United States Securities and
Exchange Commission applicable to Bank, or the equivalent thereof in South
African currency determined at current rates. For purposes of this Section,
shareholders' equity of the Bank shall mean such shareholders' equity as
would be shown on any financial statement of Bank if such financial
statement were prepared according to United States generally accepted
accounting principles. If Bank is a majority owned direct or indirect
subsidiary of a US bank or bank-holding company, the provisions of this
Section 9 shall remain as specified above except that the amount of two
hundred thirty million US Dollars (US$230,000,000) specified in Section 9
(iii) above is substituted for the amount of one hundred thirty million US
Dollars (US$130,000,000) and, in such case, Bank further represents and
warrants, which shall be a continuing representation and warranty, that it
is a majority-owned direct or indirect subsidiary of a qualified US bank
(as that term is defined in Rule 17f-5(c)(3) under the Investment Company
Act of 1940, as amended) or bank-holding company.
Bank shall immediately notify Chase in writing or by other authorised means
of any development or occurrence (and the circumstances related thereto)
which could render Bank unable to continue to make any representation and
warranty specified in this Section 9 at any date. Upon such notification
Chase may terminate this Agreement immediately without prior notice to
Bank.
This Agreement shall terminate immediately, without further action of
either party, if Bank shall become insolvent. Chase may terminate this
Agreement forthwith on notice to Bank if Bank is in danger of becoming
insolvent, as determined by Chase in its sole discretion. Further, Chase
may terminate this Agreement forthwith on notice to Bank if Chase and/or a
Chase customer determines, in its and/or their sole discretion, that the
political, governmental, regulatory or economic environment of South Africa
threatens the security or safety of Securities and/or Cash in the Account
or for any other reason determines, in its and/or their sole discretion,
that the security or safety or Securities and/or cash in the Account is
threatened.
10. As used in this Agreement, the term "Instructions" means instructions by an
Authorised Person received by Bank via telephone, in writing, or by the
Society for Woldwide Interbank Financial Telecommunication (SWIFT) System,
telex, TWX, facsimile transmission, bank wire or other teleprocess or
electronic instruction system acceptable to Chase which Bank reasonably
believes in good faith to have been given or signed by an Authorised Person
or which are transmitted with proper testing or authentication pursuant to
terms and conditions which Chase may specify or to which Chase may agree.
Unless otherwise expressly provided, all Instructions shall continue in
full force and effect until cancelled or superseded by an Authorised
Person. Bank shall safeguard any testkeys, identification codes or other
security devices which Chase may make available to it. Either party may
electronically record any Instructions given by telephone, and any other
telephone discussions with respect to the Account. Instructions by
telephone shall be confirmed by Chase by telex or such other communication
as may be mutually acceptable. Information communicated via telephone by
Bank to Chase shall, upon Chase's request, be confirmed by Bank by telex or
such other form of communication as may be mutually acceptable.
11. Chase shall pay Bank such compensation, including reimbursement of
reasonable expenses (if not charged to the Account), as may be mutually
agreed upon from time to time between Bank and Chase.
12. Either Bank or Chase may terminate this Agreement upon 60 days prior notice
to the other party. Any such notice, whether given by Chase or by Bank,
shall be followed by Instructions specifying the name(s) of the person(s)
to whom Bank shall deliver the Securities and cash in the Account and Bank
shall promptly execute such Instructions. If Bank does not receive such
Instructions, Bank shall continue to hold such Securities and Cash subject
to this Agreement until such Instructions are received. If Chase shall
terminate this Agreement in accordance with the provisions of Section 9
above, Bank shall immediately deliver the Securities and Cash in the
Account upon receiving, and in accordance with, the Instructions of Chase.
The obligations of the parties under Section 4(a), 8 and 11 of this
Agreement shall survive the termination of this Agreement.
13. Notices with respect to termination, specification of Authorised Persons
and terms and conditions for Instructions (except as otherwise expressly
provided herein) shall be in writing, and delivered by mail, postage
prepaid, to the following addresses (or to such other address as either
party hereto may from time to time designate by notice duly given in
accordance with this paragraph):
To Bank at: The Manager
Standard Bank of South Africa Limited
Standard Bank Xxxxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx 0000
Xxxxx Xxxxxx
To Chase at: The Manager
Global Custody Division
The Chase Manhattan Bank, N.A.
Xxxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
with copy to:
Network Management
Global Securities Services
The Chase Manhattan Bank, N.A.
0000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
14. This Agreement shall not be assignable by either party but shall bind any
successor in interest of Chase and Bank, respectively.
15. This Agreement shall be governed by and construed in accordance with the
laws of England and the Bank hereby submits to the non-exclusive
jurisdiction of the English Courts, and for such purposes the Bank hereby
appoints Standard London Limited of 0 Xxxxxx Xxxxx, Xxxxxx XX0 as its agent
to accept service of process.
16. Any provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
17. Except as otherwise provided in this Agreement, no failure or delay on the
part of either party in exercising any power or right under this Agreement
operates as a waiver, nor does any single or partial exercise of any power
or right preclude any other or further exercise thereof, or the exercise of
any other power or right. No waiver by a party of any provision of this
Agreement, or waiver of any breach or default, is effective unless in
writing and signed by the party against whom the waiver is to be enforced.
18. This Agreement, together with the Contract, set forth the complete
understanding of the parties with respect to the subject matters contained
in such agreements, and collectively supersede and replace any previously
made proposals, representations, warranties or agreements with respect
thereto by either or both of the parties hereto. This Agreement shall
become effective upon Chase's receipt of an executed copy of this letter.
19. Bank represents and warrants to Chase that: (i) it has the corporate power
and authority to execute, deliver and perform this Agreement; (ii) this
Agreement has been duly authorised, executed and delivered by it, does not
contravene any contractual restriction binding on it or any law applicable
to it and constitutes a valid, binding and enforceable obligation; and
(iii) all authorisations of, exemptions by and filings with any
governmental or other authority that are required to be obtained or made by
it in connection herewith have been obtained or made and are valid and
subsisting.
20. This letter may be signed in any number of counterparts all of which taken
together shall constitute one and the same agreement and each party may
sign this letter by signing a counterpart including a facsimile copy.
If the foregoing correctly sets forth the understanding between Bank and Chase
with respect to Bank's services in connection with the Account, kindly execute
and return to Chase the enclosed additional copy of this letter.
Very truly yours,
THE CHASE MANHATTAN BANK, N.A.
By: /s/
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STANDARD BANK OF SOUTH AFRICA LIMITED
The foregoing is hereby agreed
to this ___ day of __________
By: /s/
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